Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. SS051257
Premo, J.
A jury convicted defendant Cameron Brown of first degree murder and found true for sentence enhancement purposes an allegation that he had personally used a firearm causing great bodily injury. The trial court sentenced defendant to 25 years to life for the conviction and imposed a consecutive term of 25 years to life for the enhancement. On appeal, defendant contends that the trial court erred by (1) permitting the jury to infer guilt from a witness’s refusal to testify, (2) admitting evidence over objection that the witness possessed a gun and a large amount of cash in his car at the time of the murder, (3) limiting the testimony of his expert witness, (4) denying his motion to disclose the identity of confidential informants, and (5) denying his motion for a new trial grounded on juror misconduct. In a separate petition for writ of habeas corpus, which we ordered considered with the appeal, defendant raises claims of ineffective assistance of counsel. We disagree with defendant and affirm the judgment. We also dispose of the habeas corpus petition by separate order filed this day.
BACKGROUND
On March 20, 2004, Kym Lee Roman drove her Monte Carlo automobile to a hair salon. Her son, Deshaum Lee, drove to the salon in Roman’s rented Cadillac and exchanged car keys with her. Lee drove the Monte Carlo to a Kragen’s auto store in Seaside and parked near a Mustang. He went inside where he conversed with James Washington, the owner of the Mustang. At approximately 11:00 a.m., defendant exited from the passenger’s side of the Monte Carlo. He wore a hooded sweatshirt that covered his head. He looked around. He walked toward the Mustang and pulled out a gun. Albert Johnson got out of the Mustang and grabbed defendant’s gun hand, but defendant shot Johnson five times. Defendant ran behind Kragen’s. Kragen’s customer Dennis Rockwell heard the shots while he was parking. He then saw defendant push a gun into his sleeve and run away behind Kragen’s. He pursued in his truck to where he believed that he could intercept defendant. He eventually pulled even with defendant who was then walking and without a sweatshirt. Defendant looked at Rockwell and ran away when he saw Rockwell use a cell phone to call 911. Three days later, Rockwell identified defendant from a police photo lineup.
At Kragen’s, after the shots, witnesses called 911. Lee then left the store for his car. He drove away as the police arrived, and a high-speed chase ensued. Eventually, Lee lost control of the car and the police arrested him. Officers found defendant’s cell phone in the passenger seat. They found elsewhere in the car Lee’s cell phone, $825, and marijuana. Roman arrived at the scene with three other women. Officer Evelyn Espinoza asked Roman whether she knew who had been with Lee. Roman was initially uncertain but ultimately said “Cameron.” The police found defendant’s and Lee’s fingerprints in the Cadillac--defendant’s prints were on the passenger-side seatbelt, dash, and door handle. Sacramento authorities searched for defendant at the homes of relatives in Sacramento. They finally found and arrested defendant in Sacramento on January 19, 2005.
The issue at trial was identity.
At trial, Rockwell could not identify defendant with certainty but reaffirmed his photo identification. He explained that he did not see defendant’s face in the Kragen’s parking lot because of the sweatshirt hood but, after he set out in pursuit of the shooter, he saw someone running, then walking, who matched the physical description of and wore similar blue jeans as the murderer. He added that he then saw defendant’s face from 15 feet away.
Defendant presented alibi witnesses.
Defendant’s mother, Melissa De La Cruz, testified that defendant was living with her sister, Billie Jo Jackson, in Sacramento during March 2004, and that she called Jackson at 8:23 a.m. on March 20, 2004, and talked to defendant. Jackson testified that on March 19, 2004, she drove defendant and her boyfriend to Salinas for a funeral and the three returned at 8:00 or 9:00 p.m.; she added that she gave the phone to defendant the next morning when defendant’s mother called and that defendant ultimately got out of bed at 10:30 a.m. Defendant’s friend, Quincy McAllister, testified that he borrowed defendant’s cell phone at the funeral, forgot to return it, used it to call family and friends, and gave it to Lee because Lee said that he was going to see defendant in Sacramento the next day. Defendant’s grandmother, Genevieve De La Cruz, testified that she saw defendant around noon in Sacramento on March 20, 2004, when he babysat Jackson’s daughter for her.
Cruz has two felony convictions; Jackson has two felony convictions; McAllister has one felony conviction.
Jackson’s daughter lived with defendant’s grandmother.
REFUSAL TO TESTIFY
For his part in the Kragen’s incident, Lee pleaded guilty to evading the police and possession of a firearm. The People listed him as a potential witness against defendant because he had told police that defendant was his passenger at Kragen’s. During in limine proceedings, the People sought a ruling to compel Lee’s testimony because Lee was refusing to testify on the ground of self-incrimination. They took the position that double jeopardy barred further prosecution for the Kragen’s incident but nevertheless granted Lee use immunity in writing. Lee demanded transactional immunity. The trial court opined that either double jeopardy or use immunity negated the privilege. But it deferred ruling on Lee’s privilege claim until the People required his testimony. It explained that it could hear the matter outside the jury’s presence and, if it upheld the privilege, Lee could invoke it without having to do so in the jury’s presence, but, if it denied the privilege, the People could call Lee as a witness. Defendant then objected to the People’s stated intention to mention Lee’s police declaration and possession of a gun and $825 in their opening statement. He claimed that mentioning those items would be highly prejudicial in the event that Lee did not testify. The trial court told the People that “If you mention it and you can’t prove up what you said, you’ve got yourself a big problem,” and told defendant that, if such a statement was unproven and prejudicial, “the D.A. suffers a mistrial.” In opening statement, the People stated that Lee possessed a revolver and had in his car $850 and marijuana. They then opined that Lee had fled the Kragen’s scene because he neither wanted the police to find those items nor desired “to be a witness to his friend’s murder.” They then outlined the following: “Lee was arrested there, and he was taken to the station, he was interviewed, I think three separate interviews. The first interview he said, ‘No one was with me. I don’t know what you are talking about.’ The second interview he says, ‘Well, someone was with me, but it wasn’t Cameron Brown. I don’t remember the guy’s name.’ And he went back and forth, then finally admitted yes, I did--by the way, during the police chase he threw his gun out the window, the .357 that was recovered, he admitted throwing the .357 from the window, admitted running from the scene because he didn’t want to be caught with the gun; he didn’t want to be part of it. Finally--” At this point, the trial court called a sidebar conference after which the People concluded this part of their opening statement by representing that Lee would “be brought in here to tell you what he knows about this incident.” When the People called Lee to testify, the trial court ordered the jury outside the courtroom. Lee’s counsel then asserted that Lee was refusing to testify. The trial court ruled that Lee had no privilege and was expected to testify. It added that, if Lee refused to testify, Lee’s out-of-court statements to the police were inadmissible (admission would compromise defendant’s right of confrontation) and Lee’s failure to testify could not be used in closing argument to suggest that Lee’s answers would have implicated defendant. The trial court then recalled the jury. The People called Lee as a witness and asked for his name. Lee refused to answer. The trial court ordered Lee to answer. The People again asked Lee for his name. Lee refused to answer or explain. The People then asked Lee whether, on March 20, 2004, he drove his mother’s rented Cadillac, he drove his mother’s Monte Carlo to Kragen’s, defendant was his passenger when he drove to Kragen’s, and whether he talked to Washington inside Kragen’s. Lee refused to answer each question. Defendant then objected to further questioning, but the trial court overruled the objection explaining that Lee had no privilege and it would control the number and extent of the questions. The People then asked Lee who was Johnson, and who had been wearing a black jersey in court. Lee refused to answer each question. The trial court then announced: “And at this point, I don’t think any further questioning would be appropriate. The witness has willfully disobeyed an order of the Court in the Court’s presence, and I do find him in contempt of Court; it’s a direct contempt. [¶] And for the benefit of the jury, in a situation like this, I must remind you of some earlier instructions that I had given to you: A question is not evidence. It may be considered only as it helps you to understand any answer given to the question. Statements made by the attorneys during trial are not evidence. You are not to assume to be true any insinuations suggested by a question asked a witness. It is up to you to draw your own conclusions as to any reasons a witness might have for refusing to testify, but you should not regard the questioning of this witness as having any evidentiary value.” In argument, the People addressed the identification issue by pointing out that (1) Rockwell positively identified defendant from the photo lineup, (2) witnesses gave similar descriptions of the murderer that comported with defendant’s description, (3) the police found defendant’s cell phone in the Monte Carlo’s passenger seat, (4) Roman said that defendant was with Lee at the time in question, (5) the fingerprints in the recently rented Cadillac supported Roman’s statement, and (6) defendant became a fugitive for 10 months. They then continued: “Finally, he’s a friend of . . . Lee’s. You know, it’s not a random person that we’ve got here. We know that the person who did the killing rode to Kragen’s in the passenger seat of . . . Lee’s car. We know that. [Defendant] is not a stranger to . . . Lee; he’s his buddy. He’s his buddy, and he’s the guy who’s going to be sitting in that passenger seat, going to be the guy that did the killing. [¶] Ladies and gentlemen, . . . Lee knows exactly who did it. . . . Lee won’t testify. The Judge indicated to you he was told he had no Fifth Amendment rights, doesn’t have any reason or opportunity to say, you know, I don’t want to testify or I’m going to get myself in trouble; he was granted all--all he needed to do is testify, and he could testify without any danger to himself, and he still wouldn’t testify. It’s up to you to decide why he wouldn’t testify.”
The trial court had ejected a man from the courtroom after the man displayed a threatening demeanor when Lee approached the witness stand.
Under the rubric of Lee’s refusal to testify, defendant makes a two-pronged claim of error. He urges that (1) the People engaged in misconduct during opening statement by referring to Lee’s expected testimony about Lee’s police statement, while knowing that they were unlikely to produce the testimony, and (2) the trial court erred by permitting the People to question Lee in front of the jury. There is no merit to these claims.
A prosecutor may unquestionably refer to evidence in opening statement that he or she believes will be produced. (People v. Barajas (1983) 145 Cal.App.3d 804, 809.) “[R]emarks made in an opening statement cannot be charged as misconduct unless the evidence referred to by the prosecutor ‘was “so patently inadmissible as to charge the prosecutor with knowledge that it could never be admitted.” ’ ” (People v. Wrest (1992) 3 Cal.4th 1088, 1108.)
Here, the People told the jury in opening statement that Lee first told the police that no one was with him, second told the police that someone was with him, and third admitted to the police that he threw a gun out of the car window. Before the People made these remarks, the trial court had preliminarily opined that Lee had no privilege to refuse to testify. During the discussion leading up to that preliminary opinion, Lee had not suggested that he would refuse to testify even if the trial court ultimately found the privilege inapplicable and ordered him to testify. The most that can be said is that defendant unsuccessfully asked the trial court to limit the People’s opening statement because of the possibility that Lee might not testify. Under the circumstances and in context, defendant simply fails to carry his burden to show that the People knew that Lee’s testimony would never be admitted. Defendant’s argument that the facts show “every indication [that] Lee was going to refuse to testify” falls short of this threshold. There is therefore no need to address defendant’s argument under People v. Barajas, supra, 145 Cal.App.3d 804, that prejudice resulted from opening-statement misconduct.
According to the United States Supreme Court, compelling a witness to assert a Fifth Amendment privilege before the jury can produce two possible grounds of reversible error: “First, some courts have indicated that error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege. . . . A second theory seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.” (Namet v. United States (1963) 373 U.S. 179, 186-187.) Under either theory, the vice is that the jury is steered toward drawing speculative inferences as to the substance of what the nontestifying witness would have said. In the words of the California Supreme Court, allowing a witness to claim the privilege in front of the jury presents “to the jury a speculative, factually unfounded inference.” (People v. Mincey (1992) 2 Cal.4th 408, 442.)
Use immunity protects a witness against the use of a witness’s compelled testimony and “ ‘use of evidence derived therefrom.’ ” (People v. Kennedy (2005) 36 Cal.4th 595, 613.) A witness who has been granted immunity no longer possesses a Fifth Amendment right: “We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege.” (Kastigar v. United States (1972) 406 U.S. 441, 453.)
Thus, once Lee was granted immunity, his testimony was compelled and he no longer had a privilege against self-incrimination. (United States v. Washington (1977) 431 U.S. 181, 187; see Kastigar v. United States, supra, 406 U.S. at p. 453; see also Pen. Code, § 1324.) Evidence Code section 913, which prohibits comment upon the exercise of a privilege and prohibits the drawing of adverse inferences from that exercise, was therefore inapplicable. The jury was entitled to draw a negative inference when Lee refused to testify. (People v. Lopez (1999) 71 Cal.App.4th 1550, 1554 (Lopez).)
In Lopez, a witness indicated out of the presence of the jury that he would refuse to testify. The witness did not have a valid privilege against self-incrimination because he had already entered a plea to the offense and because the time for an appeal had passed. When called to the stand, the witness invoked the privilege and refused to answer questions in front of the jury. On appeal from a conviction, the court held that the procedure followed was proper. It decided that when a trial court has determined out of the presence of the jury that a witness’s privilege has been waived or no longer exists, the jury is entitled to hear the witness’s improper claim of privilege and may draw a negative inference when the witness refuses to answer questions. (Lopez, supra, 71 Cal.App.4th at pp. 1554-1555.) The court specifically explained: “Once a court determines a witness has a valid Fifth Amendment right not to testify, it is, of course, improper to require him to invoke the privilege in front of a jury; such a procedure encourages inappropriate speculation on the part of jurors about the reasons for the invocation. An adverse inference, damaging to the defense, may be drawn by jurors despite the possibility the assertion of privilege may be based upon reasons unrelated to guilt. These points are well established by existing case law. (See, e.g., People v. Mincey, supra, 2 Cal.4th at p. 441.) But where a witness has no constitutional or statutory right to refuse to testify, a different analysis applies. Jurors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony.” (Id. at p. 1554, italics omitted.)
Here, the trial court determined, out of the presence of the jury, that Lee wished to exercise his Fifth Amendment privilege. Lee was granted use immunity but indicated that he would still refuse to testify. Thus, the trial court properly permitted Lee to take the stand, since it had determined, out of the jury’s presence, that he no longer had a privilege to claim. (Accord, United States v. Romero (2nd Cir. 1957) 249 F.2d 371, 375.) The People were then entitled to briefly question Lee to see if he would change his mind about testifying once he was actually in front of the jury. As in Lopez, because Lee no longer had a privilege to claim, there was no error in the fact that the jury heard Lee refuse to answer the questions put to him.
Defendant argues that Lopez was wrongly decided because the case “failed to analyze the prejudicial effect the procedure had on [him].” But he cites no authority for this proposition.
The cases that defendant cites do not require U.S. to reverse the judgment on the basis that defendant was denied confrontation. The cases finding a violation of confrontation do so on the basis that the questions posed to the mute witness adverted to prior statements made by that witness, statements as to which cross-examination was not possible. (See, e.g., Douglas v. Alabama (1965) 380 U.S. 415, 419-420; People v. Rios (1985) 163 Cal.App.3d 852, 864; People v. Shipe (1975) 49 Cal.App.3d 343, 346-351; People v. Harris (1969) 270 Cal.App.2d 863, 866-869.) For example, in Douglas v. Alabama, where a witness refused to testify, the United States Supreme Court observed that the right of confrontation was denied because the defendant was unable to cross-examine the witness as to his prior statement and because the questions posed to the witness permitted the jury to infer that the statement had been made and that it was true. (Douglas v. Alabama, supra, 380 U.S. at pp. 419-420.)
Here, the questions asked of Lee did not suggest that he had previously given any statements, and no prior statements of Lee were admitted which could not be cross-examined. Additionally, the trial court instructed the jury to regard the People’s questioning as having no evidentiary value. We must presume that the jury followed that admonition and drew no inferences from the content of the prosecutor’s questions. (People v. Adcox (1988) 47 Cal.3d 207, 253.) Hence any inferences raised by Lee’s refusal to testify did not add “ ‘critical weight to the prosecution’s case in a form not subject to cross-examination,’ ” unfairly prejudicing him and thus denying him his right to confrontation. (Douglas v. Alabama, supra, 380 U.S. at p. 420, quoting Namet v. United States, supra, 373 U.S. at p. 187.) It simply goes too far afield to analogize the insinuations which may have been present in the People’s questions here to questions presenting specific facts of the offense. (See, e.g., People v. Shipe, supra, 49 Cal.App.3d 343.)
Among other questions, one witness in Shipe was asked the following: “ ‘Is it not true that when you--You were called back into the house by [another individual] and when you arrived you saw the body of [the victim] on the floor in the living room? [¶] Is it not true that when you came back and saw the body of [the victim] that [the defendant] was on top of him? [¶] Is it not true that you saw [the defendant] remove the wallet of [the victim] and take the knife with him? [¶] . . . [¶] Is it not true that you told the police about the incidents I have just examined you on? [¶] Is it not true that you have talked to me and my investigator about the events we have just discussed . . . ?’ ” A second witness was asked, among other questions, “Is it not further true . . . that in your presence [the victim] was stabbed multiple times by [the defendant]? [¶] . . . [¶] Is it not true that further, while you were there, [the defendant] removed a wallet and knife from the premises? [¶] . . . [¶] Are you aware of anything that you told me at [the interview] that was not the truth?” (People v. Shipe, supra, 49 Cal.App.3d at pp. 347-348.)
ADMISSION OF GUN AND CASH EVIDENCE
Under this rubric, defendant also makes a two-pronged claim of error. He urges that (1) the People engaged in misconduct because, during opening statement, they referred to Lee’s possession of a gun but, during trial, they failed to introduce evidence of Lee’s gun possession, and (2) the trial court erred by admitting over objection the evidence that $825 was found in Lee’s car.
Defendant moved to exclude evidence of Lee’s gun possession and the $825. He interweaves the gun aspect of his objection in his claim of error on appeal. Since no evidence of Lee’s gun possession was admitted, we do not focus on the gun aspect of defendant’s objection and claim.
As to the misconduct claim, defendant’s point is the same as he advanced in his previous contention. Defendant argues that the comment was improper because “the evidence might never be admitted if Lee were not to testify.” For the reasons we have explained, defendant again fails to carry his burden to show that the People knew that the gun testimony would never be admitted.
As to the evidentiary-objection claim, the following occurred during trial outside the jury’s presence.
Defendant urged that evidence of the $825 was irrelevant and prejudicial because that evidence (combined with the gun-possession evidence) was only relevant to imply wrongdoing by Lee and, by association, defendant as Lee’s friend. The People countered that the evidence was relevant to show why Lee was running from the police (to avoid being caught with a gun and large amount of money), which, in turn, would negate that Lee was running because he committed the homicide. The trial court explained its ruling as follows: “The reason I let in the information about the weapon and the money . . . there was a shooting that the juror has to sort out a number of questions about, including whether [defendant] was present, whether [defendant] and Mr. Lee were a duo that day; if so, whether they may have prearranged an assault on someone, whether they may have been in cahoots, and whether the--a construction of the evidence will be in that direction. And, therefore, since the automobile that Mr. Lee drove away in had been really part and parcel of the crime scene, and where the evidence is that [defendant] got out of that automobile and immediately committed this shooting, the contents of the automobile are relevant, and it’s up to the jury to decide what if anything they make of those facts. But they’re certainly entitled to know about them, to see if it helps them resolve any of the factual issues in the case. This is not a situation where the crime was committed and then some search at a completely unrelated location discloses a weapon that had nothing to do with the crime scene. . . . And so there were--there were objects found in the automobile, and the jury’s entitled to whatever information they can get about who belonged to what, what was going on there at the Kragen’s parking lot. If it tends to shed light on the motive for this killing, if it tends to shed light on the intention of the shooter, or Mr. Lee, they’re entitled to hear it. So that’s why it’s in.”
Defendant repeats his arguments that the evidence of the cash was irrelevant and, alternatively, more prejudicial than probative. He urges that “Evidence that Lee possessed $825 in cash (in addition to possessing drugs and at least one cell phone), and information that he possessed a firearm, was convicted of felonies and sentenced to prison, all led to the inevitable conclusion that he was a drug dealer. It provided evidence of guilt by association.” Defendant fails to carry his burden on appeal.
“The trial court is vested with wide discretion in determining the admissibility of evidence.” (People v. Karis (1988) 46 Cal.3d 612, 637.) We therefore review a trial court’s evidentiary rulings for an abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) “When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge.” (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) “[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.) This rule requires that the reviewing court engage in all intendments and presumptions in support of the decision and consider the evidence in a light most favorable to the prevailing party. (People v. Condley (1977) 69 Cal.App.3d 999, 1015.) It also requires that the party claiming abuse of discretion affirmatively establish the point. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)
Generally, evidence must be relevant to be admissible. (Evid. Code, §§ 210, 350.) “ ‘Relevant evidence’ means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Id., § 210.)
Here, it is within the bounds of reason to conclude that evidence of the cash was relevant. The cash was found in the car from which the murderer emerged at the crime scene. As such, it did not necessarily belong to Lee. It could have belonged to the murderer or the murderer and Lee. As defendant acknowledges, the cash together with the marijuana and other evidence could paint Lee as a drug dealer. By a pariety of reasoning, the cash and other evidence could paint the murderer as a drug dealer. From this perspective, a drug-deal motive can be inferred. But it is inferred from the murderer’s association with evidence found at the scene rather than the murderer’s association with Lee. (Cf. People v. Neely (1993) 6 Cal.4th 877, 896 [where victim killed by .22-caliber bullet, evidence of .30-caliber gun and ammunition properly admitted because found in defendant’s truck at crime scene shortly after the shooting].) In addition, the evidence tends to show that Lee fled the scene of the crime to avoid being arrested as a drug dealer. At the very least, this point relates to the credibility of Lee’s anticipated testimony in the sense that it negates an inference that he fled because he was an accomplice to murder, a drug-dealing character trait being relatively benign compared to a murderous character trait. We might very well agree that these points are of marginal consequence. But the trial court relied on these points in making its ruling and defendant does no more than reemphasize his different point of view. Without making an argument that the trial court’s conclusion was irrational, defendant does not offer a path to find abuse of discretion.
We reach the same conclusion under the Evidence Code section 352 prong of defendant’s argument.
Under Evidence Code section 352, “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
It is the exclusive province of the trial court to determine whether the probative value of evidence outweighs its possible prejudicial effect. (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) And the trial court’s exercise of discretion on this issue will not be disturbed on appeal absent a clear showing of abuse. (Ibid.)
Defendant again merely reargues the points that the evidence invited the jury to (1) speculate on motive, and (2) convict defendant because he associated with a drug dealer.
In any event, the prejudice defendant complains of is not the sort of prejudice referred to in Evidence Code section 352. “Evidence Code section 352 is designed for situations in which evidence of little evidentiary impact evokes an emotional bias.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) Here, the trial court could have rationally concluded that any emotional bias was negligible given that motive was unimportant in this case and Lee’s credibility does not reflect on defendant. Moreover, the People never mentioned the $825 during argument and admitted to the jury that they proved no motive, which only underscores that the cash-in-the-car turned out to be an insignificant, passing point in an eight-day trial.
Thus, it is not irrational to conclude that the probative value of the evidence was not outweighed by the prejudicial impact.
EXPERT WITNESS
During trial, defendant proffered the testimony of Dr. Robert Shomer, an expert on eyewitness identification for the purposes of (1) showing the weaknesses of photographic lineups, and (2) discussing “all the various areas about eyewitnesses identification.” Following discussions, the trial court ruled that Dr. Shomer could testify about photographic lineups but not about eyewitness identification in general.
Defendant contends that the trial court erred when it limited the testimony of Dr. Shomer. He adds that the error deprived him of his constitutional right to present a defense and was prejudicial. We disagree.
In People v. McDonald (1984) 37 Cal.3d 351, 377, the court held that the trial court abused its discretion by excluding testimony from a defense expert witness on eyewitness identification. There, the eyewitness testimony was the only evidence that connected the defendant to the crime. (Id. at p. 360.) The McDonald court stated: “[T]he decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial court’s discretion. . . . [Citation.] We expect that such evidence will not often be needed, and in the usual case the appellate court will continue to defer to the trial court’s discretion in this matter. Yet deference is not abdication. When an eyewitness identification of the defendant is a key element of the prosecution’s case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony.” (Id. at p. 377, fn. omitted.)
In People v. Sanders (1995) 11 Cal.4th 475, 509 (Sanders), the court reaffirmed McDonald but distinguished it on the ground that the eyewitness testimony in Sanders was corroborated by other evidence.
In People v. Jones (2003) 30 Cal.4th 1084, 1112 (Jones), the court explained that Sanders does not mean that McDonald is limited to cases where “there is no other evidence whatever linking defendant to the crime.” Rather, “[e]xclusion of the expert testimony is justified only if there is other evidence that substantially corroborates the eyewitness identification and gives it independent reliability.” In Jones, as in Sanders, the Supreme Court found that the trial court had properly excluded testimony by a defense expert on eyewitness identification because of the substantial corroborating evidence other than the eyewitness testimony.
Here, as in Jones and Sanders, there was “other evidence that substantially corroborates the eyewitness identification and gives it independent reliability.” (Jones, supra, 30 Cal.4th at p. 1112.)
Defendant and Lee were friends. Lee drove the Cadillac immediately before switching to the Monte Carlo. Defendant’s fingerprints in the Cadillac suggest that defendant was in the Cadillac with Lee before the switch. Roman told the police that defendant had been with Lee. The murderer came from the passenger seat of Lee’s car. Defendant’s cell phone was found in the passenger seat of Lee’s car. The murderer ran from the scene. Rockwell intercepted defendant who had been running away from the scene. That defendant had explanations for this evidence does not negate that the evidence corroborates Rockwell’s identification.
Because other testimony linked defendant to the murder, the eyewitness testimony had independent reliability. Thus, the trial court did not abuse its discretion when it limited Dr. Shomer’s testimony. (Sanders, supra, 11 Cal.4th at p. 509.)
We add that, in McDonald, the reliability of the eyewitness identification was undermined by a very strong alibi defense. By comparison, defendant’s alibi defense is simply not credible. Defendant’s witnesses were all his relatives and friends. All but one were felons. But, most importantly, the alibi did not surface until July 5, 2005, one year and nearly four months after the murder, when Jackson told a defense investigator that defendant had been with her at the time of the murder. Jackson made this belated revelation despite the fact that Jackson had been aware that defendant’s “picture was put on the news” while the police were looking for defendant. Jackson made this belated revelation despite the fact that Jackson knew within a month of the murder that defendant was wanted for murder in Seaside. In addition, on the day of the murder, Jackson telephoned Seaside Police Detective Judy Straden to ask why Sacramento police had been at her home looking for defendant and learned from Detective Straden that the Seaside police wished to question defendant about a shooting. Yet Jackson failed to take these opportunities to tell Sacramento police or Detective Straden that defendant was with her in Sacramento at the time of the shooting. Moreover, defendant presumably knew that he was a murder suspect shortly after the murder given that he lived with Jackson. Yet he failed to surrender when one would expect just that from a murder suspect with a legitimate alibi.
We reject defendant’s contention that the limitation on Dr. Shomer’s testimony deprived him of his state and federal constitutional rights to present a defense. The application of the ordinary rules of evidence to exclude defense evidence does not infringe on the right to present a defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) The Sixth and Fourteenth Amendments guarantee a state criminal defendant a meaningful opportunity to present a complete defense. (Crane v. Kentucky (1986) 476 U.S. 683, 690-691.) However, the right to present relevant testimony is not without limitation, and may, in appropriate cases, “ ‘ “bow to accommodate other legitimate interests in the criminal trial process.” ’ ” (Michigan v. Lucas (1991) 500 U.S. 145, 149.) Erroneous evidentiary rulings can in a particular case in combination rise to a level of a due process violation. (Montana v. Egelhoff (1996) 518 U.S. 37, 53.) But a defendant is not denied his right to present a defense “whenever ‘critical evidence’ favorable to him is excluded.” (Ibid.) Accordingly, the application of the rules of evidence does not violate a defendant’s right to present a defense, and although the “complete exclusion” of evidence establishing a defense could theoretically rise to the level of a constitutional violation, the exclusion of defense evidence on a minor point does not. (People v. Cunningham (2001) 25 Cal.4th 926, 998-999.)
Here, defendant had ample opportunity to challenge his identification via his alibi witnesses, by cross-examination, and by trial counsel’s comments during final argument. And the trial court instructed the jury in the language of CALJIC No. 2.92, which generally covers the same ground as expert-given eyewitness-identification testimony. (See People v. Wright (1988) 45 Cal.3d 1126, 1144.) Dr. Shomer’s testimony was therefore not critical to the defense and exclusion of it did not deny defendant his rights to due process or to present a defense.
CONFIDENTIAL INFORMANTS
Before trial, defendant moved to disclose the identity of confidential informants. At the hearing, the following relevant information surfaced.
At 3:00 p.m. on the day of the murder, Seaside Police Officer Tracy Spencer telephoned witness A, a witness who wished to remain anonymous. Witness A told Officer Spencer that she had been near Kragen’s at around 11:00 a.m. and seen a police car and an ambulance; she further told Officer Spencer that she was curious and walked to the scene near people who had gathered and “heard information that [defendant] had done the shooting.” Several days before the hearing on defendant’s motion to disclose, Officer Spencer again spoke to witness A at which time she learned the name of the person (witness B) from which witness A got her information and details of the conversation between witnesses A and B. The People objected to identification of witness A on the ground of informant privilege (Evid. Code, § 1041), to identification of witness B on the ground that identification would tend to identify witness A, and to revelation of the details of the conversation between witnesses A and B on the ground that revelation would tend to identify witness A.
The trial court denied defendant’s motion as to witness A because defendant had failed to show that witness A was a material witness. As to witness B, the trial court held an in camera hearing with the prosecutor and Officer Spencer to determine whether witness B was a material witness. (Evid. Code, § 1042.) After that hearing, the trial court explained: “We had a completed in camera [sic] examination of Investigator Spencer. Based upon that examination at this point, the Court denies discovery as to either of the people that Investigator Spencer spoke with as neither appear to have the type of information statutorily discoverable, and both have expressed their wish to remain anonymous in the nature of the case and leads the Court to believe that their fears for their safety would be justified and that no reason exists at this juncture to compel discovery in either.” The trial court heard re-arguments on the issue twice during trial and reaffirmed its decision. At these hearings, defendant crystallized his theory that the witnesses were material. According to defendant, the witnesses were material because they were percipient witnesses who might be lying when they implicated him so as to shield the real murderer. Defendant states in his brief: “The fact that Witness A heard the shooter had curly hair supported the defense theory that [defendant] was blamed to protect the true culprit.”
Defendant contends that the trial court erred by denying his motion. We disagree.
Whether the trial court’s denial of a motion to disclose the identity of a confidential informant on appeal is subject to de novo review or is reviewed for abuse of discretion is not settled. (See People v. Gordon (1990) 50 Cal.3d 1223, 1245-1246, overruled on another point in People v. Edwards (1991) 54 Cal.3d 787, 835.) Accordingly, we will review the court’s ruling in this case de novo.
Courts have long recognized the common law privilege to refuse disclosure of the identity of a confidential informant who has furnished information to a law enforcement officer. As our Supreme Court explained in People v. Hobbs (1994) 7 Cal.4th 948, 960, footnote omitted: “The common law privilege to refuse disclosure of the identity of a confidential informant has been codified in Evidence Code section 1041, which provides in relevant part: ‘[A] public entity has a privilege to refuse to disclose the identity of a person who has furnished information [in confidence to a law enforcement officer] . . . purporting to disclose a violation of a law of the United States or of this state or of a public entity in this state . . . if . . . (2) Disclosure of the identity of the informer is against the public interest because there is a necessity for preserving the confidentiality of his identity that outweighs the necessity for disclosure in the interest of justice.’ ” Evidence Code section 1042, subdivision (d), provides that, when a defendant demands disclosure of an informant’s identity on the ground that the informant is a material witness on the issue of guilt, a hearing must be held. If the prosecutor requests, the hearing must be held in camera. (People v. Hobbs, supra, 7 Cal.4th at p. 961.) After the hearing, the trial court need not order disclosure unless “there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.” (Evid. Code, § 1042, subd. (d).)
“An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant.” (People v. Lawley (2002) 27 Cal.4th 102, 159.) The defendant bears the burden of adducing some evidence on this score. (Ibid.) It is incumbent on the defendant to make a prima facie showing for disclosure before an in camera hearing is appropriate. (People v. Oppel (1990) 222 Cal.App.3d 1146, 1152.)
“ ‘[D]efendant’s showing to obtain disclosure of an informant’s identity must rise above the level of sheer or unreasonable speculation, and reach at least the low plateau of reasonable possibility.’ ” (People v. Luera (2001) 86 Cal.App.4th 513, 526.) “ ‘The standard of “reasonable possibility” has “vague and almost limitless perimeters which must be determined on a case-by-case basis.” The courts have indicated that the measure of the “reasonable possibility” standard to be utilized in individual cases is predicated upon the relative proximity of the informant to the offense charged. “[T]he evidentiary showing required by those decisions is . . . as to the quality of the vantage point from which the informer viewed either the commission or the immediate antecedents of the alleged crime.” The existence of a reasonable possibility that testimony given by an unnamed informant could be relevant to the issue of defendant’s guilt becomes less probable as “the degree of attenuation which marked the informer’s nexus with the crime” decreases. If the informer is not a percipient witness to the events which are the basis of the arrest, it is highly unlikely that he can provide information relevant to the guilt or innocence of a charge or information which rises from the arrest. Thus, “when the informer is shown to have been neither a participant in nor a non-participant eyewitness to the charged offense, the possibility that he could give evidence which might exonerate the defendant is even more speculative and, hence, may become an unreasonable possibility.” ’ ” (In re Benny S. (1991) 230 Cal.App.3d 102, 108.)
In any event, an informant is not a material witness when he or she simply points the finger of suspicion toward a person who has violated the law. (People v. Wilks (1978) 21 Cal.3d 460, 469.)
As to witness A, defendant urges that “the identity of Witness A must be disclosed because withholding her identity deprived [him] of a fair trial under the statutes and under the state and federal constitutions.” But defendant offers no reasoned explanation to support this claim. He concedes, as he did below, that witness A was not an eyewitness witness to the crime. And we observe that witness A could not offer any testimony, favorable or unfavorable, given that the extent of witness A’s knowledge (excluding the identity of witness B) is based upon objectionable hearsay. Defendant’s point that this hearsay conclusion is proved only by Officer Spencer’s opinion of witness A’s materiality is simply not true. The hearsay conclusion is proved by what witness A said to Officer Spencer. The most that can be said is that witness A can testify to the identity of witness B who was inferentially an eyewitness. However, Officer Spencer can identify witness B without the necessity of invading the informant’s privilege as to witness A.
It is true that, although a defendant has the burden of producing some evidence on the issue, he or she need not prove that the informant was a participant in, nor an eyewitness to, the crime. (People v. Garcia (1967) 67 Cal.2d 830, 837.) Here, however, there was no reasonable possibility that defendant could reasonably expect to glean from witness A any evidence that tended to exonerate him of the crime for which he was convicted. That witness A heard that defendant had curly hair is inadmissible hearsay and hardly exonerating if defendant’s hair was not curly. Therefore, the trial court correctly denied defendant’s motion as to witness A. (People v. Luera, supra, 86 Cal.App.4th at pp. 525-526.)
As to witness B, defendant urges that disclosure was required because witness B “did not qualify as a confidential informant under Evidence Code section 1041.” According to defendant, witness B does not qualify as an informant because he or she did not furnish information to a law enforcement officer in confidence. (Evid. Code, § 1041, subd. (b).) Defendant acknowledges that witness B’s statement to witness A incriminates rather than exonerates him. But he claims that witness B was an eyewitness to the murder. He then speculates that witness B might have motives to protect the real murderer and, thus, falsely implicate him.
We decline to analyze whether there is a pass-through confidential-informant privilege, as the People assert, because the “official information” privilege applies to witness B. Evidence Code section 1040 provides that a public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure. (§ 1040, subd. (b)(2).) Subdivision (a) of that section defines official information as “information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.”
A person’s identity can be revealed to a public entity in confidence by a third person as witness A revealed witness B’s identity here. Though we question whether defendant’s speculation about witness B’s motives was sufficient to trigger an in camera hearing for purposes of overcoming the People’s privilege claim (equates to a reasonable possibility that witness B could give evidence on the issue of guilt that might exonerate the defendant), the fact is that the trial court held an in camera hearing and thereafter found against defendant’s position.
Strictly speaking, Evidence Code section 1042 does not authorize a trial court to hold an in camera hearing on a claim of official information privilege. It mentions the confidential informant privilege only. (Evid. Code, § 1042, subd. (d).) But Evidence Code section 915, subdivision (b), provides: “When a court is ruling on a claim of privilege under Article 9 (commencing with Section 1040) of Chapter 4 (official information and identity of informer) or under Section 1060 (trade secret) . . . and is unable to do so without requiring disclosure of the information claimed to be privileged, the court may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and any other persons as the person authorized to claim the privilege is willing to have present. If the judge determines that the information is privileged, neither the judge nor any other person may ever disclose, without the consent of a person authorized to permit disclosure, what was disclosed in the course of the proceedings in chambers.”
Defendant asks that, in the event we find no error in the record, we review the sealed transcript of the in camera hearing to determine whether the trial court correctly upheld the privilege. We have done so. Based on that review, we conclude that “the record demonstrates, based on a sufficiently searching inquiry, that [witness B] could not have provided any evidence that, to a reasonable possibility, might have exonerated defendant.” (People v. Lawley, supra, 27 Cal.4th at p. 160.) In particular, our reading of the transcript of the in camera hearing leads U.S. to dismiss defendant’s speculation about witness B’s motives as unfounded. Moreover, we observe that defendant’s theory could turn any incriminating confidential informant into a disclosed informant by the simple devise of claiming that the informant might be lying to protect someone else. The theory borders on being unreasonable speculation that does not reach at least the low plateau of reasonable possibility. Again, an informant is not a material witness when he or she simply points the finger of suspicion toward a person who has violated the law. (People v. Wilks, supra, 21 Cal.3d at p. 469.)
The trial court did not articulate what privilege applied to witness B. And, as we have mentioned, the People urged that the confidential informant privilege applied given that witness B’s identity and information would compromise witness A’s confidentiality. In any event, we review the trial court’s ruling rather than its reasoning. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.) And we apply the same standard for disclosure of official information as is required for disclosure of the identity of a confidential informant.
We reject defendant’s generalized claim that the trial court transgressed his right to due process by failing to order disclosure of the identities of material witnesses. As we have discussed, neither witness A nor witness B were material witnesses. We add that the use of an in camera proceeding to determine whether the subject information is privileged has long been proper and has withstood constitutional due process challenges where the defense has been given an opportunity to express its position with respect to its need for the information and where a record of the in camera hearing is preserved for appellate scrutiny. (People v. Levine (1984) 152 Cal.App.3d 1058, 1070-1071 [in camera hearing does not violate Sixth Amendment nor deprive defendant of fair trial]; People v. O’Brien (1976) 61 Cal.App.3d 766, 775 [in camera hearing does not violate defendant’s constitutional rights of confrontation, cross-examination, compulsory process and the effective use of counsel]; People v. Pacheco (1972) 27 Cal.App.3d 70, 81-82 [in camera proceeding does not violate Sixth Amendment right to compulsory process]; People v. Reel (1979) 100 Cal.App.3d 415, 420, fn. 1 [constitutionality of the in camera proceeding has been upheld].) These conditions were satisfied here. The trial court gave defendant three opportunities to explain his need for the information and to counter the People’s claim of privilege. It made three rulings on the record. A sealed record of the in camera hearing was prepared and is part of the record on appeal.
MOTION FOR NEW TRIAL
Defendant contends that the trial court erred by denying his motion for a new trial grounded on jury misconduct. He urges that one of the jurors received extraneous information.
A juror’s consideration of information not presented in court constitutes misconduct. (People v. Nesler (1997) 16 Cal.4th 561, 578 (Nesler).) Although juror misconduct raises a rebuttable presumption of prejudice, it is not per se reversible. (In re Hamilton (1999) 20 Cal.4th 273, 295.) “[W]hen misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias.” (In re Carpenter (1995) 9 Cal.4th 634, 653.) Such bias appears: “(1) if the extraneous material, judged objectively, is so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror; or (2) even if the information is not ‘inherently’ prejudicial, if, from the nature of the misconduct and the surrounding circumstances, the court determines that it is substantially likely a juror was ‘actually biased’ against the defendant.” (Nesler, supra, 16 Cal.4th at pp. 578-579.)
Defendant supported his motion with testimony and declarations. De La Cruz testified that, during trial, she saw Leroy Davis talk to the “white haired juror” at lunch recess in the snack bar area of the courthouse and heard Davis say something to the effect of (1) “you have to be careful about family members getting on the stand because they will lie,” and (2) “you have to look them in the eyes.” She continued that she told defense investigator Kelvin Windham as soon as she got back to court and told defendant’s counsel the next day. Windham testified that he had discussed De La Cruz’s revelation with defendant’s counsel before the jury returned a verdict and counsel had indicated that “we’re possibly going to have to get a hold of Mr. Davis at a later date.”
The trial court identified the jurors by number, and the parties accept that the juror in question was juror No. 3.
Davis was Johnson’s step-grandfather. He was in the courthouse serving as a juror in another case.
In a declaration, Windham declared that he had interviewed Davis and learned that Davis remembered conversing with a white haired juror in the snack bar area about “being retired from the U.S. Post Office and the people they knew in common who were still employed with [the] Post Office.”
The trial court accepted De La Cruz’s testimony at face value and explained as follows: “Well, what the evidence is, is that some other juror told a juror on this trial during the course of the trial, while on a break, that that juror should scrutinize the testimony of the family members because they might be harmed. This Court exhaustibly [sic], I think, instructed our jurors as to how to go about their job as jurors, how to keep open minds in the case, how to--there was a specific jury instruction as to how to approach and evaluate the testimony of each witness. What was said, assuming it was said, was nothing more than the obvious, that with respect to family members testifying, you need to be careful, you need to scrutinize them, the man said you need to look them in the eye. He doesn’t say that they’re always lying, you have to be careful. The test is whether or not information that was conveyed to the juror would likely have led to a different result in the case. And I simply don’t find that that is the case. This is a--a consideration that any rational juror would go through in his own mind, that you need to be careful about the testimony of someone who’s closely involved, closely related, who has the obvious bias in the case. If you want to put it that way, a strong reference, that the family member, the son in the case of a testifying witness might be prone to help the defendant out. That’s obvious. And that was an obvious issue in argument; it was an issue all the way through the case, the question of bias, and I do not find that, based upon this information, that the juror received any information, he received absolutely nothing that was factual about the case, just a general statement only that any responsible juror would have considered in his own mind, and that the--that the Court’s instructions covered. So I see no--no reason to conduct an inquiry, no reason to bring the juror in, no reason to, . . . that there was any interference with the deliberative process of the jury or that there was any impropriety.” The trial court also agreed with the People that defendant had forfeited the issue because defendant’s counsel had been aware of the claimed misconduct during trial but failed to “bring it forward to the Court.”
We decline to reassess the prejudicial effect of the assumed out-of-court information upon juror No. 3 because we agree with what is conceptually the trial court’s threshold ruling. A defendant forfeits a jury misconduct issue “by failing to seek the juror’s excusal or otherwise object to the court’s course of action.” (People v. Holloway (2004) 33 Cal.4th 96, 124.)
Here, defendant knew of the now-claimed misconduct during trial but chose to keep the point undisclosed until after the verdict. A contemporaneous objection “would have alerted the court to the issue and allowed for an immediate inquiry and a possible remedy.” (People v. Wisely (1990) 224 Cal.App.3d 939, 948; see also, People v. McIntyre (1981) 115 Cal.App.3d 899, 906 [objection at the time would have given the court a chance to cure the problem or grant an immediate mistrial]; People v. Sanchez (1965) 232 Cal.App.2d 812, 819 [defendant must aver that he had no knowledge of misconduct at the time it occurred].) “Having expressed no desire to have the juror discharged at the time, and indeed no concern the juror had engaged in prejudicial misconduct, defendant ‘is not privileged to make that argument now for the first time on appeal.’ ” (People v. Holloway, supra, 33 Cal.4th at p. 124.)
Defendant urges that the forfeiture authorities cited by the People are factually distinguishable. But he does not claim that the forfeiture principle is inapplicable.
We add that the forfeiture rule promotes efficiency and conserves judicial resources by preventing a defendant “ ‘ “from speculating on the result of the trial and raising the objection after an unfavorable verdict.” ’ ” (People v. Polowicz (1992) 5 Cal.App.4th 1082, 1094.) Stated another way, “To consider on appeal a defendant’s claims of error that were not objected to at trial ‘would deprive the People of the opportunity to cure the defect at trial and would “permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.” ’ ” (In re Seaton (2004) 34 Cal.4th 193, 198.)
In the alternative, defendant contends that the trial court abused its discretion when it denied his motion to disclose the identity of juror No. 3 “in order to investigate grounds for a new trial.” According to defendant, disclosure was required under the applicable statutes “To the extent there was a dispute as to what was actually discussed . . . .”
Since defendant forfeited the issue, he fails to demonstrate abuse of discretion. We add that there was no dispute as to what was actually discussed because the trial court accepted De La Cruz’s statements as true for purposes of the motion.
CUMULATIVE ERROR
Defendant argues that the cumulative effect of the asserted errors deprived him of his constitutional right to a fair trial. The California Supreme Court has instructed that “a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) Since we have rejected defendant’s claims of error, we must reject defendant’s contention of cumulative error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.